BERRY PLASTICS CORPORATION v. INTERTAPE POLYMER CORPORATION
ORDER UPON IN CAMERA REVIEW, PURSUANT TO PRIOR COURT ORDER 201 . Signed by Magistrate Judge William G. Hussmann, Jr. on 7/2/2014.(NMT)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
BERRY PLASTICS CORPORATION,
INTERTAPE POLYMER CORPORATION,
ORDER UPON IN CAMERA REVIEW,
PURSUANT TO PRIOR COURT ORDER (DKT. 201)
This matter is before the Honorable William G. Hussmann, Jr., United
States Magistrate Judge, pursuant to his prior Entry on Defendant’s Motion to
Compel Production of Documents entered February 21, 2014, which ordered
Berry and non-party Triad Sales, LLC, to produce certain documents for in
camera review. Berry’s and Triad’s Notice of Compliance on Defendant’s Motion
to Compel the Production of Documents (Dkt. 201) was filed ex parte on February
28, 2014. (Dkt. 204.) The Magistrate Judge has now completed in camera
review of these items and issues the following orders:
1. The Magistrate Judge has reviewed the Supplemental Privilege Log for
documents identified in “Appendix 1” of the motion at issue. The Magistrate
finds that the Supplemental Privilege Log properly shows that the attorney-client
privilege applies and that the common interest doctrine is not the sole source of
the claim of privilege. A review of the log itself convinces the Magistrate that
there is a good faith basis for claiming attorney-client privilege on the documents
listed in that appendix. Therefore, no disclosure of the items listed in “Appendix
1” is warranted.
2. With respect to the documents found in “Appendix 3” of the original
motion, the Magistrate Judge has reviewed in camera these documents (now
provided as Exhibits B & C to Dkt. 204). Of the 516 pages reviewed, a large
portion of these documents (at least 200 pages, if not more) are written in the
German language. The Magistrate Judge’s working knowledge of German is
extraordinarily marginal – limited to a few words and phrases taught to him by
his Grandfather, a Lutheran Minister who preached in German. However, the
information identifying the authors and recipients of these documents convinces
the Magistrate that these are documents exchanged between parties who share a
common legal interest. The vast bulk of the documents involve
communications between Ralf Quack, Michael Derksen, and Michael Batton.
Other persons who are copied or addressed all contain email addresses that
include “@berryplastics.com,” “@triadsales.com,” and “@entex.de.” There are
only a handful of documents that appear to be sent to Jerry Serra and Chris
Hockstedler that contain an email address that is “@cov.com,” which appears to
reference “Covalence.”1 The Magistrate concludes that the documents in
“Appendix 3” are between parties who share a common legal interest. Unless
Intertape can show that Covalence was not closely related to Berry at the time
these documents were created, none of the documents that are found in
“Appendix 3” would appear to be between parties not sharing a common legal
interest as previously discussed by the Magistrate. In the event Covalence is
not related to Berry in a close manner, the handful of documents which were
sent directly to Covalence representatives may have been sent to an entity that
does not have a legal interest that is common between Berry, Triad, and Entex.
Only those documents sent to a Covalence representative would need to be
provided in that event.
The documents reviewed are also shown to have involved attorney-client
privilege. The vast bulk of the documents relate to drafts of the “Common
Interest Agreement” between the parties thereto. Almost all copies reflect
communications to or from Barnes & Thornburg lawyers. There are a handful
of innocuous documents arranging meetings and addressing and scheduling a
December 2009 or January 2010 common interest technical trial of machinery.
These documents all reference that “trial” as a part of the parties’ actions
relevant to determining their legal position in relation to the patent at issue. In
1 Berry and Covalence were separate companies that merged in 2007.
short, the Magistrate concludes that the documents provided all can reasonably
be construed as attorney-client and common interest protected documents.
None of them need to be produced in the future.
William G. Hussmann, Jr.
United States Magistrate Judge
Southern District of Indiana
Dated: July 2, 2014
Served electronically on all ECF-registered counsel of record.
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